CONSTITUTIONAL COURT
The advantage of hindsight provides us with clarity on many matters that are currently being hotly debated. One of them is whether to set up a separate Constitutional Court. Currently, the Supreme Court (SC) as the apex judiciary body has been assigned the responsibility of not only the ultimate appeal-hearing but also interpreting the constitution. Past experiences show that the SC landed in controversies whenever it dealt with political and constitutional issues such as the cases on parliament dissolutions.
Besides, there is a growing trend of knocking the doors of the SC on every little issue, so the apex court is burdened with a heavy load of cases. It is presently sitting over 9,000 cases that are pending. Therefore, it is a matter of common sense to lessen its burden. Setting up a separate Constitutional Court could reduce its burden. Such a court may be formed headed by the incumbent chief justice and four other members nominated by the Constitutional Council. The members could be chosen from among eminent constitutional experts. The constitutional court could be assigned the duty of interpreting the constitution and deciding on political/constitutional disputes. Its jurisdiction could include the disputes between political parties such as the ones that are currently heard by the Election Commission. Likewise, it can hear dispute between the center and the province; between provinces and between constitutional bodies.
POWERFUL JUDICIAL COMMISSION
The existing Judicial Council was envisaged to be powerful and independent body responsible for appointment, transfer of judges, and taking actions against those judges who are found breaching the law. The Council currently has men with integrity such as Motikazi Sthapit and Basudev Dhungana, some of the key pioneers of Nepali judiciary, as full-time members.
But the weaknesses in the judicial governance have made it impossible for them to function as per the expectations of the public. Due to such weaknesses, some are accusing the whole system as corrupt. This points to the need to reform the structure of the Council to make it more efficient. A case can, therefore, be made for the introduction of a powerful Judicial Commission.
Furthermore, the present system of parliamentary hearing in the appointment of judges has, at best, become a cosmetic effort aimed at judicial reform. The hearings have failed to create an environment conducive for reform in the sector but have ended up bolstering the views that the legislative encroachment is eroding the judicial independence. The best solution amid the raging debate on safeguarding the independent judiciary will be to go forth with deep reforms in the existing judicial set-up rather than its total demolition as some are calling for.
There is a growing trend of knocking the doors of the SC on every little issue, so the apex court is burdened with a heavy load of cases. It is presently sitting over 9,000 cases that are pending. Therefore, it is a matter of common sense to lessen its burden. Setting up a separate Constitutional Court could reduce its burden.
The existing Judicial Council could be restructured into Judicial Commission under the leadership of the chief justice with 10 other members including four members of parliament who will be appointed as per the recommendations of the speaker and representing major parties in the lower house apart from representatives from the Nepal Bar Association and civil society. Such a Judicial Commission should be given complete autonomy on the issues of appointment, transfer and taking disciplinary actions relating to judges.
Likewise, the existing Constitutional Council should be kept in tact. The prime minister-headed Constitutional Council can be an independent, effective and well-balanced institution to decide on appointment of heads and members of constitutional bodies.
POWER OF IMPLEMENTATION
One of the major reasons for decreasing public faith in judiciary is the fact that the courts’ orders are hard to implement. The present system puts the onus of implementation on the executive. That is where the problem lies. The executive is left to pick and choose how and when it implements the court decisions. For example, recently the court pronounced that a Maoist lawmaker is guilty of murder charges. He was sentenced to prison. But, till date, he has not been punished as his mother party is lobbying in favor of overturning the court decision. This shows the reason why public has deep mistrust for the judiciary. One way this situation can be changed is by handing over the responsibility of implementation of court orders and verdicts to the judiciary itself. The courts should be empowered and made resourceful along with adequate manpower to enable them to implement their decisions.
FIX TIMELINES TO DECIDE CASES
There have been instances where people have to wait, literally, a lifetime to get justice from Nepali courts. This situation has to end. One of the worst criticisms of the courts is that they take a long time to issue verdicts and move through complex procedures. The fact that there are over 50,000 cases pending in courts across the country (and only 250 judges and 4,000 judicial manpower to administer justice), speaks volumes about the lack of efficiency.
In order to resolve this problem, there should be a fixed timeline to settle cases. The SC must settle a case within a year while the lower courts (structures of such courts will be decided along with the restructuring of the state) at provincial or district level must settle it within six months. Such changes will go a long way in reforming the judiciary and bring it in line with the demands of 21st century Nepal. These are definitely a few things that Constituent Assembly members and leaders need to give a thought to when they debate the nature and structure of judiciary when they write the new constitution.
Writer is Executive Director of Nepal Law Society
nls@wlink.com.np
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